The hearsay rule: How it helped Roberto Miramontes Roman, who was acquitted of murder

SPANISH FORK — When Roberto Miramontes Roman appears before a judge to be sentenced Wednesday, prosecutors will not vacillate about what they think the man deserves.

"We are absolutely recommending consecutive prison sentences," chief deputy Millard County attorney Patrick Finlinson said, for the man who was once facing capital murder charges in the killing of Millard County sheriff's deputy Josie Greathouse Fox.

Even though he once confessed to the killing, a jury acquitted Roman of aggravated murder in August. They found him guilty of lesser charges of tampering with evidence and possession of a dangerous weapon, third-degree felonies, following a week-long trial.

It was a verdict that sparked outrage by family members of the victim and by those in the law enforcement community. Finlinson said he avoided news reports for about a month after the trial ended.

"I was there," he said. "I knew what happened."

As the lead prosecutor on the case, he heard the jury's "not guilty" verdict on the murder charge loud and clear.

"It was awful," Finlinson said. "It was a tough pill to swallow after all that we put into it."

It was a case that went from routine to controversial when Roman took the witness stand and testified that Fox's own brother, Ryan Greathouse, was the one who shot and killed the deputy. Because Greathouse is now dead, prosecutors were left with only a written statement he gave to police shortly after the shooting.

The case then shifted and hinged on two basic principles of law — one of them straightforward and the other a complex, often-misunderstood rule rife with exceptions and loopholes.

Ryan Greathouse's account, which Finlinson said would have largely supported prosecutors' theory of events, was ultimately ruled inadmissible as hearsay evidence and in conflict with the constitutionally guaranteed confrontation clause — rules implemented to protect the rights of the accused and help the jury get to the truth of the matter.

Without the Greathouse statement, jurors later said, they could not find Roman guilty beyond a reasonable doubt.

Instead of a potential death penalty, Roman now faces a maximum sentence of 10 years in prison.

The case

Few cases are "open and shut," but the case against Roman seemed like a formality. The day after Fox, 37, was shot and killed during a traffic stop, Roman — who had already been charged with the killing — confessed in a recorded police video. His fingerprints were on the AK-47 used in the shooting. He admitted to fleeing Millard County only to be arrested hiding in a shed in Beaver.

But when Roman took the witness stand during his murder trial 2 ½ years after the Jan. 5, 2010, shooting, his story completely changed. He testified that he had been in the car that Fox pulled over early that January morning, but he said it was Ryan Greathouse who pulled the trigger, not realizing the deputy was his sister.

"When it became clear that (Roman) was going to testify, we weren't sure who he was going to point to," Finlinson said, before listing off whom prosecutors suspected Roman might name as the guilty party. "(Co-defendant) Ruben (Chavez-Reyes), one of the officers, Ryan."

The problem for prosecutors was that Ryan Greathouse, 40, died of an accidental drug overdose just 4 ½ months after his sister was killed. His body was discovered in the bedroom of a Las Vegas apartment.

"So, blame the dead guy," Finlinson said in closing arguments. "Blame the guy who can't defend himself. Blame the guy who can't respond. Blame deputy Fox's dead brother," he said. "Ladies and gentlemen, I think that's called adding insult to injury. Ryan Greathouse did not kill his sister."

It was a unique challenge, but not one that is unheard of and Finlinson had a strategy to combat it. He planned to allow Roman to make statements on the stand that he felt were "clearly hearsay" evidence, which he hoped would "open the door" so that the judge would then allow Finlinson to rebut Roman's testimony with other hearsay evidence — a written statement Ryan Greathouse had given to police.

"That was part of the strategy — listening closely to any hearsay statement to get the rest of the (Ryan Greathouse) statement in," Finlinson said. "We intentionally allowed Roman to make hearsay statements regarding what Ryan Greathouse said and argued that they had opened the door. Our argument was that they opened the door, so we thought we would be able to get all of Ryan's statements in. We thought that would be tremendously helpful."

But defense attorneys Steve McCaughey and Jeremy Delicino objected to the admission of the Ryan Greathouse statement, arguing that it was hearsay and conflicted with the confrontation clause — a defendant's right to confront and question witnesses against them.

Finlinson countered that the door on the subject had been opened because of Roman's testimony and that that warranted allowing Ryan Greathouse's statement to the jury, even though he was no longer available to be questioned by the defense. Exceptions to the rule can sometimes be granted when a witness is unavailable.

The judge sided with defense attorneys and ruled the majority of the statement was inadmissible. He told prosecutors that if they had objected to Roman's statements that they believed contained hearsay while he testified, he wouldn't have allowed them.

"What ended up happening was, because we didn't object, we allowed him to make those statements," Finlinson said. "The only part of Ryan's statement that came into the case were the parts that hurt us, not the rest of it. Ninety percent of Ryan's statements were completely consistent with our theory and inconsistent with the new version, Roman's version of the story."

The decision to keep the statement out of the trial appeared to be a crucial one after jurors reported that the lack of evidence about Ryan Greathouse made it difficult to convict Roman "beyond a reasonable doubt."

Fox's family felt the judge's ruling decided the case and said as much in a strongly worded statement issued by Fox's father, Russell Greathouse.

"The one decision that had the biggest impact on the trial was the exclusion of all of Ryan’s sworn written statements," Greathouse wrote. "Judge Eyre was wrong in every sense and shouldn’t have suppressed it when there was no legal justification for that decision."

In response to the statement, the judge's brother, Brent Eyre, wrote an email to the Deseret News defending his brother and his decision and suggested that prosecutors could have done more while cross-examining Roman to question his narrative of events. Brent Eyre declined to be interviewed on the matter.

But both the family and Finlinson ultimately said the jury had heard enough evidence to convict with or without the statement.

"We still basically presented our case," Finlinson said. "That didn't make or break the case. There were a lot of people who were really upset with Judge Eyre. I felt like the jury still had enough evidence."

What is hearsay?

Former 3rd District Judge Robert Hilder said hearsay is an ancient and complicated principle of law. In its most basic form, it's "an out of court statement offered for the truth of the matter."

"That's the actual definition and that's a pretty simple issue, of course, but it's not," Hilder said. "It's full of exceptions. It's full of things that sound like they're hearsay, but they're not."

Whether certain statements can legally be allowed into a trial depends on when something was said, to whom it was said and under what settings and circumstances it was said. There are also some exceptions when hearsay evidence can be allowed in a trial, such as a deathbed admission. Though the person may now be dead, Hilder said, there is a certain allowance given for these statements because it is believed the fear of God prompts people to tell the truth.

As it was, Hilder saw a few problems with Ryan Greathouse's written statement — including those raised by defense attorneys. The main issue Hilder noted was that Greathouse couldn't be cross-examined or confronted.

"I cannot imagine a way that Judge Eyre could have let in Ryan's statement," Hilder said. "But then you say, 'Well for heaven's sake, why do we let Roman say what happened?' Well, Roman was reporting as a purported eyewitness. He may have been telling the truth, he may have been lying through his teeth, but he was sitting on the stand, under oath, saying, 'I saw this happen' and he could be cross-examined."

But that isn't to say that blaming a crime on an unavailable witness is the fail-safe defense. Hilder said Roman's story was more believable because he placed himself in the car at the time of the shooting.

"Roman did something that helped his position to say, 'I was there. I saw it. I was part of this,'" Hilder explained. "If he said, 'I had nothing to do with this, but I heard from a guy in a bar that Greathouse did it,' that's solely hearsay. There's no evidentiary basis for the claim."

In the face of Roman's story, prosecutors had few tools available in their arsenal.

"I'm not sure what (Finlinson) could have done to stop that," Hilder said. "I think he probably did what he could do. I mean if someone gets on the stand and raises his hand and says, 'I'll tell the truth,' the only real check is cross examination and he had that.

"The prosecutors undoubtedly worked everything they had. The judge did his job. He couldn't bring in what he couldn't bring in and if he had, we'd be waiting for the reversal."

The rules are part of the legal system that, Hilder said, pitches two gladiators against each other and charges them with bringing the truth to light. Judges are the gatekeepers and they have to allow and disallow evidence as they see fit, with as much integrity as they can.

"With Roman, none of us can say 100 percent whether he did it or not," Hilder said. A lot of people feel very strongly he did and there's no reason to think they're wrong. 'Not guilty' does not mean he didn't do it. No one suggests it does. What it does mean, is that it wasn't proven beyond a reasonable doubt."

Finlinson said the decision to not call Roman's co-defendant, Chavez-Reyes — who told investigators that Roman had admitted to him that he'd killed a police officer — was not an oversight. He said he could not comment on why that decision was made.

He reiterated that the decision Eyre made not to allow jurors to hear all of Ryan Greathouse's statement about that night was not the crucial moment of the case — although he still would have liked more of the explanation behind the decision. He still felt they presented a good case and provided ample evidence for jurors.

"I'm not pointing a finger at anyone," Finlinson said. "It happened and we moved forward. But it was a rough couple of weeks."